An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA05-360


Filed: 03 January 2006

and wife, DENISE H.

v .                         Lee County
                            No. 00 SP 0178
DEBRA E. BOST, unmarried,
and husband, KEITH BRUEHL,

    Appeal by respondents from judgment entered 19 July 2004 by Judge John Jolly in Lee County Superior Court. Heard in the Court of Appeals 6 December 2005.

    Staton, Doster, Post & Silverman, by W. Woods Doster, for plaintiff-appellees.

    Johnson and Johnson, P.A., by Rebecca J. Davidson, for defendant-appellants.

    STEELMAN, Judge.

    Respondents, Bobbi Bost Bruehl and her husband, Keith, appeal the trial court's order confirming the actual partition of a tract of land they owned as tenants in common with Mrs. Bruehl's brother, Scott Bost, and his wife, Denise (petitioners).
    In January 1998, the parties' mother died intestate. At her death, she owned an 83.25 tract of land located in Lee County. The land lies on both sides of S.R. 1510, with approximately 5.3 acres located west of the road and the balance of the tract located to the east. The heirs to her estate were petitioner, Billy ScottBost, respondents Debra E. Bost and Bobbi Bost Bruehl, and Karen Bost Heyman. Billy Bost acquired Mrs. Heyman's interest in the property and Mrs. Bruehl acquired Debra Bost's interest, resulting in Mr. Bost and Mrs. Bruehl each owning a one-half undivided interest in the property.
    On 25 October 2000, petitioners filed a petition seeking actual partition of the tract of land, asserting “the nature and size of said land is such that an actual division thereof can be made among the said tenants in common without injury to any of the parties interested.” On 27 November 2000, respondents filed a response to the petition, which also prayed for an “actual partition of the lands.”
    On 16 January 2001, the commissioners filed a report allocating specific parcels of land to petitioners and respondents. They awarded respondents the 5.3 acre tract, the most valuable portion of the property, and thirty-five acres of the larger tract. The thirty-five acres allotted to respondents was the portion of the land furthest away from the road, but they were awarded a perpetual easement along an existing road, which provided access to S.R. 1510. The commissioners awarded respondents the remainder of the westerly portion of the tract. The clerk of court confirmed the commissioners' report. Respondents appealed this ruling to the superior court and the matter was heard de novo before Judge James F. Ammons, Jr. at the 6 May 2002 session of superior court. Judge Ammons vacated the clerk's order and remanded the matter to thecommissioners with instructions to reappraise the property and consider certain “suggestions” made by the court.
    On 6 February 2003, the commissioners filed their second report, partitioning the property in the identical manner as in their previous report. The clerk of court confirmed the commissioners' report. Respondents again appealed to the superior court. The matter came on for a hearing de novo before Judge Jolly. By order entered 19 July 2004, Judge Jolly confirmed the commissioners' report. Respondents appeal.
    In respondents' sole argument, they contend the trial court erred in confirming the commissioners' second partition report. They cite several reasons for this contention, including: (a) the commissioners did not comply with Judge Ammons' order; (b) the trial court did not consider whether a partition by sale was appropriate; (c) the evidence was insufficient to show the property was divided into equal shares “in point of value;” and (d) the division of the property was not fair and equitable. We address each of these contentions.
    N.C. Gen. Stat. § 46-10 directs that the appointed commissioners “must meet on the premises and partition the same among the tenants in common . . . according to their respective rights and interests therein, by dividing the land into equal shares in point of value as nearly as possible . . . .” N.C. Gen. Stat. § 46-10 (2005). Whether a partition in kind is fair and equitable is a question of fact to be determined by the superior court judge upon an appeal from a judgment of the clerk of courtconfirming the commissioners' report. West v. West, 257 N.C. 760, 762, 127 S.E.2d 531, 532 (1962). “The findings of the judge are conclusive and binding if there is any evidence in the record to support them.” Id. Since this matter is left to the discretion of the trial court, our review is limited to a determination of whether there was an obvious abuse of that discretion. Robertson v. Robertson, 126 N.C. App. 298, 304, 484 S.E.2d 831, 834 (1997) (citing White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). Thus, we may only reverse the trial court where “its actions were manifestly unsupported by reason.” Id.
    A. Compliance with Judge Ammons' Order
    Respondents first contend the commissioners did not comply with Judge Ammons' order. Upon entry of the order directing reappraisal, Judge Ammons made several “suggestions” to the commissioners that they consider when partitioning the property. The record establishes the commissioners did consider Judge Ammons' suggestions, in both their second report and in testimony given during the hearing before the trial court. At the hearing, commissioner Robbie Campbell testified he and his fellow commissioners considered Judge Ammons' suggestions, but ultimately determined the suggestions, if implemented in partitioning the property, would devalue it. Furthermore, the trial court specifically inquired as to the steps the commissioners took in addressing each of Judge Ammons' suggestions. Mr. Campbell explained in detail why they did not follow the suggestions and that they did consider the value of the pond with partitioning theproperty. They also explained why it was not necessary for the property to be sold at public auction and the proceeds divided.
    The commissioners were not required to partition the lands pursuant to Judge Ammons' suggestions. N.C. Gen. Stat. § 46-19 makes clear that a superior court judge may either “[r]ecommit the report for correction or further consideration” or “[v]acate the report and direct a reappraisal by the same commissioners,” but it “may not adjudge a partition of the land different from that made by the commissioners.” The record contains evidence sufficient to show the commissioners fully considered each of Judge Ammons' suggestions and responded to each of the court's concerns, both in their second report and at the hearing. This is all the law requires. This argument is without merit.
    B. Partition in Kind v. Partition by Sale
    Next, respondents contend the trial court erred in failing to make a finding as to whether the commissioners considered whether the value of the lands allotted to each of the parties was materially less than what would be obtained if the lands were sold. Respondents cite to N.C. Gen. Stat. § 46-22.
    An actual partition, which is also know as a partition in kind, is favored over partition by sale. Partin v. Dalton Property Assoc., 112 N.C. App. 807, 810, 436 S.E.2d 903, 905 (1993). As such, it is only where the trial court orders the sale of property in lieu of an actual partition must it make findings that an actual partition of the lands cannot be made without substantial injury to any of the parties, and recite the facts supporting an order ofsale. N.C. Gen. Stat. § 46-22 (2005). In the absence of an order of sale, the trial court was not required to make findings.
    Further, respondents never sought a partition by sale of the property. In their response to the petition for actual partition, they prayed for an actual partition. In appealing the commissioners' second report, they did not request a sale of the property, rather they were simply dissatisfied with the tracts they were allotted. In fact, respondents never raised this issue until their appeal to this Court. This Court has repeatedly stated that a party “cannot swap horses between courts in order to obtain a better mount on appeal.” King v. Owen, 166 N.C. App. 246, 250, 601 S.E.2d 326, 328 (2004). As such, respondents cannot now complain that an actual partition would work a substantial injury upon them. This argument is without merit.
    C. Division of Land Equal in “Point in Value”
    Next, respondents contend there was insufficient evidence to establish that the property was divided into equal shares “in point of value” as required by N.C. Gen. Stat. § 46-10. We disagree.
    Petitioners offered testimony from Tom Coggin, a real estate appraiser, who testified the value of each of the two shares of land was approximately $61,000.00 and provided the trial court with the methodology used to arrive at this figure. While it is true that respondents also offered testimony from another real estate appraiser that the value of the parcel allocated to petitioners was worth approximately $9,000 more than respondents' parcels, this is irrelevant under our standard of review. Asstated above, the trial court's findings are conclusive and binding on appeal if there is any evidence in the record to support them. West, 257 N.C. at 762, 127 S.E.2d at 532. Furthermore, the trial judge, acting as the fact finder, determines the credibility and probative force of the witnesses' testimony. Powers v. Fales, 61 N.C. App. 516, 521, 301 S.E.2d 123, 126 (1983). Here, the judge rejected respondents' evidence, stating: “12. This Court finds that the value of the one parcel allocated to the Petitioner was $61,000.00 and the value of the two parcels allocated to the Respondent was $61,000.00 in the aggregate.” The trial court's conclusion that the commissioners divided the land into equal shares in point of value as nearly as possible is supported by the findings of fact, which were in turn supported by evidence in the record. This argument is without merit.
    D. Whether Division is “Fair and Equitable”
    Finally, respondents contend the division made by the commissioners was not fair and equitable and the trial court erred in affirming the actual partition. We disagree.
    There was ample evidence in the record to support the trial court's ultimate finding that the partition was just and equitable. The evidence reveals that the commissioners closely examined the property, took into account the terrain, as well as road frontage, and other significant aspects of the land, and partitioned it into two parcels of equal value as required by N.C. Gen. Stat. § 46-10. Thus, the trial court did not abuse its discretion in finding thatthe division of the property was fair and equitable. This argument is without merit.
    For the reasons discussed herein, we affirm the ruling of the trial court.
    Judges WYNN and LEWIS concur.
    Report per Rule 30(e).

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